Eu Ws6 Freedom Of Establishment And Services

Front 1

Distinction between establishment and services:

Back 1

Gebhard v Consiglio (1995)

- “stable and continuous” vs “temporary”
- consider continuity and regularity
- presence of infrastructure does not prove establishment

Front 2

Freedom of establishment

Back 2

Article 49 TFEU

a. No restrictions on freedom of establishment
b. Includes agencies and subsidiaries
c. Do:
- self-employment
- run companies or firms on same terms as nationals of host MS

Front 3

Treat companies as natural persons for freedom of establishment

Back 3

TFEU 54

Front 4

You can use TFEU 49 in home MS if there is a 2 “union element”

Back 4

Marks and Spencer's v Halsey

Front 5

TFEU 49 has direct effect and can be relied upon in national courts

Back 5

Reyners v Belgium

Front 6

Any profit-making legal person governed by public or private law in home state gets equal treatment as a person

Back 6

TFEU, a54

Front 7

"Services"

Back 7

TFEU 57

Services are such if normally provided for remuneration
Can be provided temporarily
Services on same terms as host MS nationals

Front 8

Can sue home MS if they're in the way

Back 8

Alpine Investments

Front 9

TFEU 56 has direct effect and can be relied upon in national courts

Back 9

Van Binsbergen

Front 10

Distributing abortion information could be restricted because while abortion is a commercial service, the ones handing it out did not have a commercial motive.

Back 10

Grogan (1991)

Front 11

Services can be provided remotely, by telephone, fax or internet

Back 11

Alpine Investments (1995)

Front 12

A business can use its own workforce to provide services, even if they are not MS nationals

Back 12

Van der Elst (1994)

Front 13

Right to travel to other MS to receive tourism services

Back 13

Luisi and Carbone (1984)

Front 14

Right to travel to other MS to receive medical services at expense of state insurance

Back 14

Geraets-Smits (2001)

Front 15

NHS confirmed to be liable for treatment in other MS if treatment at home not possible without undue delay

Back 15

Watts (2006)

Front 16

Definition of “restriction” for TFEU 49 + 56:
“national measures liable to make less attractive the exercise of fundamental freedoms”

Back 16

Gebhard v Consiglio

“national measures liable to make less attractive the exercise of fundamental freedoms”

Front 17

TFEU 49 forbids distinctly applicable measures, i.e. laws that apply to foreigners

Back 17

Reyners v Belgium

Front 18

TFEU 49 forbids indistinctly applicable measures – things applying to all but with discriminatory effect

Back 18

Commission v Italy

Front 19

TFEU 49 forbids non-discriminatory stuff that impedes freedom of establishment without any discrimination

Back 19

Sodemare SA

Front 20

Directive 2004/38, article 24

Back 20

All Union citizens shall enjoy equal treatment to home nationals in a MS (2004/38 does not apply to companies)

Front 21

Directive 2006/123, 2(1)

Back 21

Applies to services provided by individuals/companies established in a MS

Front 22

Directive 2006/123, 2(2) + 2(3)

Back 22

Exceptions to applicability

Front 23

Directive 2006/123, 1(5)

Back 23

Does not affect criminal law

Front 24

Directive 2006/123, 1(6)

Back 24

Does not affect labour law, including health and safety

Front 25

Directive 2006/123, 4(1)

Back 25

A service is any self-employed activity normally done for remuneration

Front 26

Services Directive 9-13

Back 26

Laws/authorisation schemes only permissible where:
- Non-discriminatory
- Overriding public interest reason
- Proportionate
- Not duplicating similar rules in other MS
- Transparent criteria and not arbitrary application

Front 27

Directive 2006/123 outright bans

Back 27

14:
- Discriminatory nationality requirements
- Bans on establishment in multiple member states
- Obligations to insure with provider in host state

Front 28

MSs must evaluate these for compatibility

Back 28

2006/123, 15

- Quantitative and territorial restrictions
- Obligations to take a certain legal form
- Obligations to provide additional services

Front 29

Company that refused to reimburse local company for municial billboard tax lost because the fee was reasonable

Back 29

Viacom v Societe

Front 30

Public Policy (must be a genuine threat to a fundamental interest of society)

Back 30

Omega Spielhallen

Front 31

TFEU 51 exception - activities connected to the exercise of official authority

Back 31

Reyners v Belgium

- These are very tightly construed by the courts

Front 32

Cassis de Dijon: applied to Establishment:

Back 32

Gebhard

Measure must be:
- Indistinctly applicable
- Justified by imperative requirements in the general interest
- Suitable for obtaining the objective

Front 33

Cassis de Dijon: applied to Services:

Back 33

Measure must be:
- Indistinctly applicable
Alpine Investments

- Justified by imperative requirements in the general interest
- Suitable for obtaining the objective

Front 34

- Case where two Danish nationals used UK incorporation rules then set up a branch in Denmark to get around tougher rules at home.
- Justification for not registering was soundness of companies.
- Held that creditors have other checks and can obtain guarantees.

Back 34

Centros (1999)

Front 35

Indirect discrimination: only firms with the state having a majority shareholding can be offered contracts.
- Justification was to protect confidential data
- Held that such breaches could just be made a criminal offence

Back 35

Commission v Italy (1989)

Front 36

Non-discrimination case impeding freedom of establishment: care homes not allowed as for-profit businesses
- Justification to maintain financial stability of social care system
- Held this was a reasonable way to organise social care system

Back 36

Sodemare SA (1997)

Front 37

Only those “established in Holland” can be social security advisers
- Justification: necessary for the administration of justice
- Held that Netherlands address for service would be sufficient

Back 37

Van Binsbergen (1974)

Front 38

UK patent renewal prevented from working Germany by law restricting it to professionals
- Justification was service users would be harmed by bad advice from unqualified persons
- Held it was a routine service and that harm would not be severe

Back 38

Sager v Dennemeyer (1991)

Front 39

Businesses established in Netherlands banned from cold-calling potential customers
- Justification was it protects the good name of Dutch financial sevices industry
- Held it was proportionate because limited to potential customers and other means of contact existed

Back 39

Alpine Investments (1995)